- (1.) By way of filing this writ petition, the petitioner has prayed for quashing order dated 19.10.1993 passed under Section 45A of the Employees' State Insurance Act, 1948 and, that, the respondents may be restrained from recovering the amount mentioned in order dated 19.10.1993. It is also prayed that the respondents may be restrained from proceeding against the petitioner in relation to its employees at its registered office at Udaipur in pursuance of the provisions of the Act of 1948 because the petitioner's establishment at 4-D, New Fatehpura, Udaipur is not a shop.
(2.) During the course of arguments, learned Counsel for the petitioner apprised this Court that as per the decision of the Division Bench of this Court in D.B. Civil Special Appeal No. 6/2005, arising out of the judgment dated 25.03.2004 passed by the learned Single Judge in S.B. Civil Misc appeal No. 671/1996, the controversy with regard to liability under the Act of 1948 is finally decided and the petitioner firm is not disputing the liability after final adjudication of the matter by the Division Bench. It is, however, vehemently argued by learned Counsel for the petitioner that the petitioner company is a company registered under the Indian Companies Act, 1956 and the respondent Regional Director, ESI Department, Jaipur issued notices on 21.02.1986 and 28.08.1986 under Section 44 of the Act of 1948 calling upon the petitioner company to deposit the contribution. It is submitted that reply was filed to the noticed issued by the Regional Director in which it was prayed that the petitioner company was not liable to deposit any contribution as demanded by the Department under the notices Annex.-2 and 3. The said action of the Regional Director was challenged by way of filing suit by one Rakesh Yadav and the said suit was contested by the Regional Director on the grounds inter alia that Shri Rakesh Yadav had no authority to file the suit on behalf of the petitioner's company. The Court ultimately held that Rakesh Yadav had no authority to file the suit on behalf of the petitioner company and the judgment was given by the Court on other two issues relating to the merit of the claim. The said judgment dated 15.11.1992 was challenged by the petitioner company by way of filing appeal before this Court and the learned Single Judge of this Court finally decided the appeal vide judgment dated 25.03.2004 and upheld the order passed by the learned Civil Judge in ESI Case No. 2/1986 dated 15.11.1992 by which the liability of the petitioner company for contribution was upheld. The judgment passed by the learned Single Judge dated 25.03.2004 was further upheld by the Division Bench of this Court vide judgment dated 13.07.2005.
(3.) In these circumstances, there is no dispute with regard to liability to pay the contribution by the petitioner company but the petitioner company is now challenging the notice which is issued under Section 45A by the Deputy Regional Director, ESI Corporation, Jaipur on the ground that under the provisions of the Act, the Deputy Regional Director is determine the contribution. The power to determine the amount of contribution payable in respect of the employees of the factory or establishment is left with the Corporation. Learned Counsel for the petitioner has invited my attention towards Section 45A of the Act of 1948 which reads as under: 45A. Determination of contributions in certain cases.- (1) Where in respect of a factory or establishment no returns, particulars, registers or records are submitted, furnished or maintained in accordance with the provisions of Section 44 or any Inspector or other official of the Corporation referred to in Sub-section (2) of Section 45 is prevented in any manner by the principal or immediate employer or any other person, in exercising his functions or discharging his duties under Section 45, the Corporation may, on the basis of information available to it, by order, determine the amount of contributions payable in respect of the employees of that factory or establishment: Provided that no such order shall be passed by the Corporation unless the principal or immediate employer or the person in charge of the factory or establishment has been given a reasonable opportunity of being heard. (2) An order made by the Corporation under subsection (1) shall be sufficient proof of the claim of the Corporation under Section 75 or for recovery of the amount determined by such order as an arrear of land revenue under Section 45B or the recovery under Sections 45C to 45-I.;